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  • Writer's pictureJenny Rozelle, Host of Legal Tea

Current Trends - What is Elder Law? - Episode 91


Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle. Welcome back for another episode of Legal Tea! Today’s topic is a current trend … now often on this type of episode, we dive into something going on in the current time or that I’ve stumbled across on the news or social media, that is pertinent to my little estate and elder law world. Though, this week will be a tad different – because it’s certainly nothing I’ve seen on the news or online; in fact, it’s more of something that I think people are currently struggling with to understand. And really, truly understand.


As many Legal Tea Listeners know, I’m a practicing attorney and owner at a law firm in Indiana called Indiana Estate & Elder Law. Sometimes, when I walk clients out of the conference room, they’ll see the big “Indiana Estate & Elder Law” sign behind the front desk and say, “What even is Elder Law? Is it helping old people like me?” They usually giggle when saying it. So, for today’s episode, we’re going to dive into that very thing – What even is Elder Law? It’s a term of art and practice area that gets thrown around often, but in my experience, many people really don’t know what an elder law attorney does AND what the differences are between an Estate Attorney and Elder Law Attorney.


The way I often succinctly describe the difference is that it primarily depends on WHAT we are helping with – like, if I help someone in their 90s whip up a Power of Attorney, that is actually NOT elder law – that’s just estate planning, even though they’re in their 90s. So, it’s not really age-dependent, it’s more dependent on what we’re doing, which is what we’re going to get into today. Interestingly, while most elder law attorneys are nearly ALWAYS estate and estate planning attorneys; many estate and estate planning attorneys do NOT do elder law. Should I repeat that? Because it’s really important to know/understand. A heavy majority of elder law attorneys ALSO do estate and estate planning; though, a heavy majority of estate and estate planning attorneys do NOT do elder law. It’s so true. So, so true. I know many other attorneys locally that happily assist clients with estate planning, but when it comes to elder law issues, they refer out to people like me.


When I think of elder law, what I think of, predominantly at least, are two primary things: 1) guardianship and 2) affording long-term care and navigating Medicaid. We’re going to get into both of those things here in a minute, but if something does not squarely fit into those two, we actively try to create and maintain professional relationships with other people/organizations to assist in areas that some may think fall into the elder law realm, but don’t often actually fall into it. So, just to give you a few examples, think of Medicare. First, people get Medicare and Medicaid VERY confused all the time. Medicare is a glorified health insurance for those over 65 (there are a few exceptions to the 65 age – but they’re very limited, so for sake of cleanliness, let’s say 65). Navigating Medicare is best-served by professionals in the Medicare space – that are not elder law attorneys. Sure, do I know enough about Medicare to “deal with it” if it directly relates to something I’m doing, say for Medicaid – yes. But, do I actually help people select what types of Medicare to get. No. Conversely, like I said, we DO help with Medicaid – which is a totally different beast and totally different governmental program.


So, say someone comes to me and needs help with MediCARE, I can get them over to someone I know and trust in that space. Easy peasy. Am I actually doing anything for them? No. Or maybe another example is Social Security – and when to start taking it and not. That’s something else that is quite pertinent to what I do, but it’s not WHAT I do – does that make sense? Maybe in other words, it relates to what I do, but we’re not helping people navigate when and how to start collecting Social Security. Again, there are professionals in my space that I know, trust, and can refer to – if somehow that person lands in front of me and not them.


Does that make sense? So, while some may think elder law attorney guide people on ALL things/issues related to seniors, that’s just usually not the case; but, at the same time, we equip ourselves with awesome resources and referrals to provide to clients for things that, normally speaking, elder law attorney don’t do. So, let’s anchor back to what we DO normally do … remember how I said that there are two primary things: 1) guardianship and 2) affording long-term care and navigating Medicaid. Let’s hit them one-by-one, starting with guardianship…


Guardianships, first, come in different shapes and sizes. Like, there are guardianships put in place for kiddos that lose their parents before they turn 18; there’s also guardianships that are put in place for special needs kiddos, so that after they turn 18, their guardians (which is usually their parents) maintain being in control of decision-making; but lastly, for elder law, we also do guardianships for seniors – and they’re often done in two situations – 1) If the senior does not have basic documents like a Health Care Power of Attorney and/or Financial Power of Attorney; 2) If the senior DOES have these documents, but they really aren’t “enough.” I’ll get to that in a second. Let’s start with the first one – say, a senior does not have documents and they get to a point that they cognitively-speaking, very likely unable to make their own decisions, or at least decisions in their own best interest. Someone that has, say, dementia is not out of luck – but it’s sure getting close to that door shutting. So, if someone doesn’t have documents, a guardianship is really the only option, at that point, to get someone in charge of that person’s decisions.


Now, say the senior DOES have documents, but, like I said, they are not really … enough. Or strong enough. I think this is best explained by an example. I once had a client that had his basic documents in place, like a Power of Attorney, and later in life, he developed quite the advanced form of dementia – and started doing things that put himself at risk. Like, he put a pile of clothes in the microwave, turned it on, and let it go thinking it was the washing machine. He absolutely refused to leave his house – even though, through many examples like this one, it was not appropriate for him to be there alone.


So, daughter comes to us – explains things and we agreed. Yeah, he shouldn’t be living alone, he’s probably best-served in a memory care community, and the issue is he didn’t want to leave. Really, at that point, the only way to, for a lack of a better way to describe it, force him to leave his house was to get someone, here the daughter, appointed as the Guardian because a guardianship is a Court process, where the Judge says “XYZ person’s decisions are now in the hands of ABC person.” So yeah – Unfortunately, because so many people fail to do even basic estate planning documents OR they do them and develop impairment causing them to not operate in their own best interest, then a guardianship may be appropriate. And that’s why many elder law attorneys help families obtain guardianship for their loved ones – if they fit into these types of situations.


The other “big thing” that elder law attorneys do is navigate paying for/affording long-term care through benefits like Medicaid. So, that seems like a really fluffy way to say … long-term care is flipping expensive! When I say long-term care, I mean nursing homes, assisted living communities, and even home health care. If you want to know some numbers – as what they cost – just Google it! And remember, that as time passes, like everything, it’ll increase over time – which is extra crazy to think about.


Because paying for it is expensive, there are really four ways to pay for long-term care: 1) you pay meaning you take our your checkbook and write a check every month for thousands of dollars; 2) if not you paying, then the second way to pay is long-term care insurance, which is great if you have it, but not a lot of people have it (sometimes it’s hard to qualify for, sometimes, people don’t bite the bullet because of its cost, etc.); the third way to pay for long-term care, if you don’t pay and you don’t have long-term care insurance, is your lovely family chipping in to pay. I don’t know about you, but not a lot of people have extra thousands of dollars to chip in every month for their loved one’s care … and the fourth way to pay for long-term care is … Medicaid. Not Medicare. Medicaid.


I think it’s important to clarify – Medicare will not pay for long-term care. They may pay for a brief stint in rehab or hospice – but Medicare is not going to pay for long-term care. It’s Medicaid that could be tapped into to pay for long-term care. So, the thing about Medicaid is they have some very specific rules regarding how much someone has in income and in assets … in order to be able to qualify for the benefit. Even beyond that, Medicaid has one set of rules for single individuals and a totally different set of rules for married couples. So, if you’re married and even just ONE of you is requiring care, then those married couples’ rules apply. Because of all these different rules, two things come to mind:


First, because of the different rules … single versus married, rules on income, rules on assets … because of all those and oh, every state is different too so that’s fun! So because of all of this, there are soooo many misconceptions about Medicaid because if you talk to a family member or friend that has navigated this before, they could very well have a minor fact that is different … that causes them to operate by different rules. So, then you think you can do what they did … and it won’t work. Because of this, THAT is why elder law attorneys exists for Medicaid, which leads me to my second point. There is A LOT to keep straight, right? That’s exactly why a lot of ESTATE attorneys don’t practice elder law – because it’s a beast to keep up with. And kudos to them, honestly, for not trying to dabble in something that they don’t want to fully embrace! Not to mention, Medicaid, like may fields of law, has ever-changing rules, too; so much so, that our local elder law chapter of attorneys puts on an annual event to update us on all the different/new rules. So, you remember one of my last episodes talking about non-attorneys doing Medicaid … and how states are starting to come down on those non-attorney Medicaid assistance companies. So now that I say all this, I hope that episode really resonates now!


Alrighty, I’m out of time, friends, so let’s wrap this episode up -- next week’s topic is on estate planning of the rich and the famous – on that episode, we’re going to dive into what happened estate-wise following the passing of billionaire, Doris Duke. Doris passed way with an estimated estate to be around $1.3 Billion – and the lesson to learn from Doris’ Estate is to be careful in who you pick as your Executor. Dun dun dun…We will dive into that next Tuesday, Legal Tea Listeners, as I dive into his estate – Talk to you then and stay well!


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